Clean sweep Dutta’s first PIL was for getting users to clean up after public functions at Calcutta’s Maidan. Others were on cleaning up the Hooghly, tree-felling.
On July 6, the Supreme Court dismissed a PIL alleging that former finance minister and the upa’s presidential candidate Pranab Mukherjee had misused his office. But that hasn’t deterred Manohar Lal Sharma, the advocate who filed the petition, from considering filing another. In March, he’d been fined Rs 50,000 for a “frivolous” petition alleging conflict of interest on part of Chief Justice of India S.H. Kapadia in a tax case. Justice Alam, a judge in that case, had said, “The more we read (your plea), the more it hurts.”
Sharma is thinking of expanding the scope of his petition on Pranab and bringing it to the Delhi High Court. “Even if the petition is dismissed, at least the public will notice the issue I am raising,” says Sharma. He shouldn’t hope, going by his record. Last year, he unsuccessfully lobbed corruption charges on anti-corruption crusader Anna Hazare, days before the 72-year-old went on a heavily televised hunger strike.
Photograph by Tribhuvan Tiwari
“Even if my petition against Pranab is dismissed, the public will take note of the issue I am raising.” M.L. sharma, Delhi
Taking on big guns Was fined by the SC for a “frivolous” PIL against the CJI. Has also filed a PIL against Pranab Mukherjee
Sharma leans heavily on the PIL, a unique feature of Indian law that allows any individual, NGO or institution to approach a court, even on behalf of others, in the public interest. The feature was developed during the 1980s to expand the scope of constitutional rights such as the right to life. PILs have led to the release of bonded labourers, the use of cleaner fuel and empowered displaced people. Today, scores of lawyers and citizens latch on to PILs, many in the hope of a quick headline grab.
An older generation of PILs, like the April 1985 petition for action against companies polluting the Ganga, were “marathons, not sprints”, says M.C. Mehta, the SC advocate considered India’s earliest PIL warrior. His PILs have led to orders for waste treatment plants in over 250 towns and cities, introduction of unleaded fuels and the shift, in Agra, from coal to CNG-based industry.
Mehta rubbishes notions that PILs are less cumbersome than regular cases. For instance, his Ganga pollution PIL is still being heard in court, 25 years on. “Verdicts along the way reinforced my case, it’s not a fact that just filing a PIL ensures success,” Mehta avers. In this case, the orders led to the closure of thousands of polluting factories, moved 600 tanneries from Calcutta to special zones outside the city. Those pronouncements now cover over 30,000 factories in eight states. Mehta says he has not filed a fresh PIL in years—just the ongoing ones offer as much research, follow-up and documentation as he can handle.
Neither are these Chhugani’s first brush with PILs. A decade ago, he had asked a policeman why a thana was on a pedestrian path. The man’s reply (“Rules against trespassing don’t apply to police”) prompted Chhugani’s first PIL. Last year, over one hundred squatting chowkies in Mumbai were demolished.
Most ‘PIL warriors’ felt the gravitational pull of courts after they couldn’t count on local administration to resolve a problem. For Calcutta chartered accountant Subhas Dutta, the moment came after he participated in a TV debate on the decrepit condition of the Maidan, a large field in Calcutta surrounding a colonial memorial. The debate spurred him to walk around the Maidan taking pictures of the rubbish strewn, interviewing locals and studying environmental laws. Two months later came his first PIL, and in a year, Maidan users were ordered to clean up after themselves.
Thereafter Dutta unleashed a series of PILs—for a 22-point plan to improve Howrah, halting illegal tree-felling, cleaning major rivers. He sometimes approached the SC. “I’ve had 25-40 per cent success in courts, much better than when I approached bureaucrats directly,” he says. His PILs spurred a ‘green bench’ in the Calcutta High Court, dealing exclusively with environment issues.
Photograph by R.A. Chandroo
“My premise is simple: a government should be accountable. But making it happen called for court intervention.” R. Prabhakaran, Chennai
Calling a halt His PILs stopped the conversion of a library into a hospital, stayed a rule that bars deaf-mutes from contesting panchayat elections
There are over 3 crore pending court cases, many piling up from lack of administrative efficiency, and, according to Prof Upendra Baxi, a legal scholar and professor emeritus of law at the University of Warwick, that’s why PILs play a critical role. “If the executive doesn’t follow the law, courts have to intervene. I feel PILs are a good thing. Letter-PILs in particular have been a major contributor to democratisation,” says Baxi.
The sentiment echoes in different ways across India. Advocate R. Prabhakaran recently got the Madras High Court to stop the conversion of a Rs 200-crore, 3.33 lakh square feet library into a hospital. Though the state government’s announcement invited a litany of protests, it had defended the decision as a “policy” matter. “My PIL’s premise was that a government must be accountable: A simple idea, but only court intervention resolved it,” he says. The library will not be moved now. Through yet another PIL, Prabhakaran could “stay” a local panchayat rule in several states that barred deaf-mute candidates from elections.
Could the rise of PIL warriors, despite the good work they do, be part of a larger problem? M.G. Devasahayam, a retired IAS officer who runs the Forum for Electoral Integrity in Chennai, agrees that courts may want to focus on the vast number of pending cases rather than tackle PILs, especially those that are ultimately rejected. “Yet,” he says, “India swings between two extremes. We either have undue political dominance on how people live, work etc or we have governance neglect and failure. Since political parties can’t be penalised for their mistakes, people turn to the judiciary.”
Even recent government efforts to remove troubling bureaucratic hurdles—such as the Right to Information Act—have further armed the public-spirited with legal ammunition. Mumbai activist Sanjay Tiwari came upon the “fabulous route” of using RTI to file PILs after the devastating monsoon floods in Mumbai in 2005. He identified gaps in compensation declared and handed out through RTI applications, and took it to court. It led to action—against nine officials of Brihanmumbai Municipal Corporation and other agencies responsible for relief work—and some suspensions.
Photograph by Apoorva Salkade
“When I asked a policeman why a chowki was on a pedestrian path, he said such rules don’t apply to police.” Indur K. Chhugani, Mumbai
Walking rights His first PIL saw more than 100 squatting police chowkies removed. Another of his petitions seeks ‘corruption studies’ in schools.
“When someone gives me a tipoff of a bada lafda, I use the RTI and gather information. When there’s no action, I approach the court with a PIL,” says Tiwari. He doesn’t hesitate to file a PIL, believing that people only value instructions given by courts. Indeed, it was Tiwari’s PIL in the Bombay High Court that led to an fir against the powerful Kripa Shankar Singh, the former Mumbai Congress chief, earlier this year.
But the real challenge for PILs is not that there are too many. N.L. Rajah, an advocate in Chennai who has often filed PILs (the latest to ban a prescription drug being abused by children), says about half the pending cases are criminal cases, in which the government is the prosecutor. These cases have the poorest conviction record. “So who has clogged the courts? PILs or the government’s poor investigation skills?” Devasahayam asks.
It isn’t as if the judiciary can’t distinguish between serious and frivolous petitions. Besides, putting faith in courts doesn’t mean giving up other avenues. Activists file PILs, write to Parliament and approach the media. Those who don’t explore all the options, experts say, should start doing so. But clearly the PIL is taking pride of place for now.
Our PIL warriors have made a big difference in a variety of fields (Law for the Layman, Aug 6). Both they and the courts should look at each PIL as an opportunity for change, instead of frittering away valuable time. Also, the courts should punish officials who ignore their duties.
“Of late PILs have lost their ethos and credibility due to their undeclared new name ‘PERSONAL INTEREST LITIGATION’ .”
Judicial intervention in matters that fall in the executive domain should also follow the principle of rarest of the rare.
"PIL .. a unique feature of Indian law that allows any individual, NGO or institution to approach a court, even on behalf of others, in the public interest."
It make 60 crores adults in the country eligible to approach court and file PIL. It means 2 things - lawyers guarding the courts must be charging exorbitant amount. By directing the government to redirect resources to serve 'particular' interests mean 'public' interest taking backseat. In either case the concept of PIL is subversion of the democracy.
The rise of the PIL phenomenon does not speak highly of the machines of administration. Is somone listening?
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